Emeka Nelson and Others v Deutsche Lufthansa AG and TUI Travel plc and Others v Civil Aviation Authority.

• Jurisdiction: European Union
• Celex Number: 62010CJ0581
• ECLI: ECLI:EU:C:2012:657
• Date: 23 October 2012
• Docket Number: C‑581/10,C‑629/10
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Grand Chamber)

23 October 2012 ( *1 )

‛Air transport — Regulation (EC) No 261/2004 — Articles 5 to 7 — Montreal Convention — Articles 19 and 29 — Right to compensation in the event of delay of flights — Compatibility’

In Joined Cases C-581/10 and C-629/10,

REFERENCES for a preliminary ruling under Article 267 TFEU from the Amtsgericht Köln (Germany) and the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (United Kingdom), made by decisions of 3 November and 10 August 2010 respectively, received at the Court on 13 and 24 December 2010, in the proceedings

Emeka Nelson,

Bill Chinazo Nelson,

Brian Cheimezie Nelson

v

Deutsche Lufthansa AG (C-581/10),

and

The Queen, on the application of:

TUI Travel plc,

British Airways plc,

easyJet Airline Company Ltd,

International Air Transport Association

v

Civil Aviation Authority (C-629/10),

THE COURT (Grand Chamber),

composed of V. Skouris, President, K. Lenaerts, Vice-President, A. Tizzano, G. Arestis, J. Malenovský (Rapporteur), M. Berger, Presidents of Chambers, E. Juhász, A. Borg Barthet, J.-C. Bonichot, D. Šváby and A. Prechal, Judges,

Advocate General: Y. Bot,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 20 March 2012,

after considering the observations submitted on behalf of:

— Deutsche Lufthansa AG, by C. Giesecke, Rechtsanwalt,

— TUI Travel plc, British Airways plc, easyJet Airline Company Ltd and the International Air Transport Association, by L. Van den Hende, Solicitor, and by D. Anderson QC,

— the Civil Aviation Authority, by A. Shah QC,

— the German Government, by T. Henze and J. Kemper, acting as Agents,

— the United Kingdom Government, by S. Ossowski, acting as Agent, and by D. Beard QC,

— the French Government, by G. de Bergues and M. Perrot, acting as Agents,

— the Polish Government, by M. Szpunar, K. Bożekowska-Zawisza and M. Kamejsza, acting as Agents,

— the European Parliament, by L.G. Knudsen and A. Troupiotis, acting as Agents,

— the Council of the European Union, by E. Karlsson and A. De Elera, acting as Agents,

— the European Commission, by K. Simonsson, K.-P. Wojcik and N. Yerrell, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 May 2012,

gives the following

Judgment

1 These references for a preliminary ruling concern the interpretation and validity of Articles 5 to 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

2 The reference in Case C-581/10 has been made in proceedings between, on the one hand, Mr Nelson and his family (together ‘the Nelsons’) and, on the other, the airline Deutsche Lufthansa AG (‘Lufthansa’) concerning Lufthansa’s refusal to compensate those passengers, whose arrival at the airport of destination was delayed by 24 hours in relation to the arrival time originally scheduled.

3 The reference in Case C-629/10 has been made in proceedings between, on the one hand, TUI Travel plc, British Airways plc, easyJet Airline Company Ltd and the International Air Transport Association (collectively ‘TUI Travel and Others’) and, on the other, the Civil Aviation Authority concerning that latter’s refusal to guarantee to them that it would not interpret Regulation No 261/2004 as imposing an obligation on airlines to compensate passengers in the event of delay to their flights.

Legal context

International law

4 The Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, was signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38; ‘the Montreal Convention’).

5 Articles 17 to 37 of the Montreal Convention comprise Chapter III thereof, entitled ‘Liability of the carrier and extent of compensation for damage’.

6 Article 19 of that convention, entitled ‘Delay’, provides: ‘The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.’

7 Article 22(1) of the Montreal Convention limits the liability of the carrier in the case of damage caused by delay in the carriage of persons to 4 150 Special Drawing Rights (SDRs) for each passenger. Article 22(5) essentially provides that this limit is not to apply if the damage results from an act or omission of the carrier, its servants or agents in the course of their duties, done with intent to cause damage or recklessly and with knowledge that damage would probably result.

8 Article 29 of that convention, entitled ‘Basis of claims’, is worded as follows: ‘In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.’

European Union (‘EU’) law

9 Recitals 1 to 4 and 15 in the preamble to Regulation No 261/2004 state: ‘(1) Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general. (2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers. (3) While Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport [(OJ 1991 L 36, p. 5)] created basic protection for passengers, the number of passengers denied boarding against their will remains too high, as does that affected by cancellations without prior warning and that affected by long delays. (4) The Community should therefore raise the standards of protection set by that Regulation both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market. … (15) Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.’

10 Article 2 of that regulation, entitled ‘Definitions’, provides: ‘For the purposes of this Regulation: … (1) “cancellation” means the non-operation of a flight which was previously planned and on which at least one place was reserved.’

11 Article 5 of Regulation No 261/2004, entitled ‘Cancellation’, states: ‘1. In case of cancellation of a flight, the passengers concerned shall: (a) be offered assistance by the operating air carrier in accordance with Article 8; and … (c) have the right to compensation by the operating air carrier in accordance with Article 7, unless: … (iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival. … 3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. …’

12 Article 6 of Regulation No 261/2004, entitled ‘Delay’, is worded as follows: ‘1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure: (a) for two hours or more in the case of flights of 1500 kilometres or less; or (b) for three hours or more in the case of all intra-Community flights of more than 1500 kilometres and of all other flights between 1500 and 3500 kilometres; or (c) for four hours or more in the case of all flights not falling under (a) or (b), passengers shall be offered by the operating air carrier: (i) the assistance specified in Article 9(1)(a) and 9(2); and (ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and (iii) ...